July 30, 2007

"... and he said he didn't remember having any, and that people thought, well, he's not being forthright. Well, he was being absolutely honest, because I remember, at that time, it was not something law students generally talked about. It was considered a fairly settled, noncontroversial matter."

Said Justice Stevens recently, with, I think, a clever purpose, discussed in a post written Saturday night, which I'm highlighting here so weekday-only readers will see it.

17 comments:

Oh, please.I find rather hard to believe that Thomas, who graduated from Yale in about 1975, never discussed a landmark decision like Roe vs Wade, rendered in 1973. (Think he knew anything about that Vietnam thingie?)

I'm not an attorney, but I can certainly remember many conversations among friends about the ramifications of the decision during that period.

But, hey...maybe this is why he's such a sham as a Justice.

Oh, and you can bet your ass his BFF Scalia had plenty of discussions relating to Roe during that period.

Are you suggesting that Stevens is trying to put overturning Roe v. Wade as beyond the pale, because it's seen by everyone as "settled"? That seems to be what you're getting at, and if that's what he's doing, it is rather clever.

Well, I would have to agree with luckyoldson about it being nonsense, but for different reasons. I dont know anywhere in America where everyone considered it settled law, especially in '75. I would disagree with the idea Thomas is a "sham" as a Justice. No one who pays attention to the court could say that with a straight face. You can certainly disagree with some positions, but the idea he is just keeping a seat warm is insane.

I was a law student when Roe came out, and don't recall its having been a hot topic of discussion at the time. I had several ConLaw-type classes with Bruce Ackerman, and don't remember his devoting much in-class attention to Roe either. I think part of the reason was (as Stevens says) the result (in terms of social policy) didn't seem all that controversial, even though Blackmun's opinion supporting that result was dismissed, pretty much from day one, as embarrassingly weak. Another part of the reason was that the SCOTUS was at the tail end of a decade or so of having issued lots of decisions that were very controversial dealing with criminal law and racial discrimination, all of which had the effect of focusing attention elsewhere than Roe. In particular, I remember Furman v. Georgia (1972) -- the case striking down the death penalty as then administered on the grounds that it was arbitrary and capricious in the same sense as getting hit by lightning is arbitrary -- getting lots of attention, unlike Roe. And, in the early 70s, law schools were still mostly male -- both in terms of student body and, even more overwhelmingly, faculty. Abortion rights just wasn't a topic that men, especially men in their 20s, focused on, and the faculty's interests were mostly elsewhere as well.

Thus, thinking back on my own experience, I don't see anything remarkable in what Stevens has to say about Thomas's testimony during his confirmation hearings.

As for "super stare decisis" and the Court's latest twists in the abortion rights area, the divisions on the Court are too deep to be papered over by stare decisis, whether of the "super" or "normal octane" variety. Those divisions are rooted in a disagreement about the Court's proper institutional role, about what issues are proper for judicial resolution and what ones have to be decided by the political branches. We saw that play out this term not only in the "partial birth abortion" case, but also (with an element of role reversal) in the school desegregation cases. None of the justices is likely to change his views on those issues; stare decisis is, frankly, irrelevant in dealing with such fundamentals. Recall that, in the desegregation cases, Stevens reminded us all of his view of the importance of stare decisis, when he quoted CJ Roberts's statement earlier in the term that the victors get to (re)write history. In determining his vote last term on those cases, Stevens was no more swayed by stare decisis than was Thomas.

Thus, I agree with you that Stevens was having some fun at the expense of Thomas and the other members of the majority in last term's cases. But that's all it was really, just having some fun.

Luckyoldson: You've just declared that you care nothing for facts as long as you can insult someone, and the more the merrier.

Your first post, correctly, notes that Thomas graduated from law school in 75 and that Roe v Wade was decided in 1973. Your 3rd post, 50% of the comments, attacks rich dolan for claiming that Thomas was a student in 73, because you claim that he was in fact a practicing attorney.

If your statement is, in fact, true, I can understand your anger at Thomas being a USSC Justce, since he spent several years practicing without even a law degree, nevermind a bar licence. However, I believe that your venom and hate has instead destroyed your ability to argue and you instead respond like a Tourette's sufferer even when you've previously demonstrated awareness of contrary facts.

You are an idiot, a knave, and a fool who is too rash to even read his own posts in a thread. Stop talking so as to not continue to embarrass yourself.

Gahrie said..."...If you ever did any research rather than parrot tired leftist diatribes, you'd know that quite often Justice Thomas persuades Justice Scalia to change his mind and join with his position."

Right...Thomas is the dominant party on the court, with Scalia following his lead.

Clarence Thomas entered Yale Law School in September, 1971 and graduated in May, 1974. Roe v. Wade was decided January 22, 1973.

Thomas's dates are seared into my memory because he was accepted at Yale Law School the same year I was rejected :)

I was at Harvard when Roe was decided and it was very controversial. Not that any of us disagreed with it. We thought it was wonderful, another example of the Court leading America from an unfortunate past to an enlightened future. We knew it wouldn't be popular but like with Brown, we assumed we would pull the country to a better place and eventually be celebrated for it (and yes, there was very much a feeling that "we"--law students, professors, and the liberal majority on the Supreme Court--were part of one big movement).